Tomana now a free man

Published: 13 February 2018

Former Prosecutor-General Mr Johannes Tomana breathed a sigh of relief yesterday after the High Court dismissed all the criminal charges he was facing.

Mr Tomana had approached the court seeking an order dismissing all charges levelled against him after the State failed to prosecute him within the prescribed indictment period. Justice Amy Tsanga granted the application by Mr Tomana, who was being represented by Advocate Thabani Mpofu, instructed by Mr Hubert Mukewa.

The judge declared the charges to have lapsed. She said Mr Tomana was also entitled to his unconditional liberty and should be given back the bail he deposited with the court.

"The criminal charges brought against Johannes Tomana in CRB 197/ 16, being six counts of criminal abuse of duty as a public officer as defined in Section 174(1) (a) of the Criminal Law (Codification and Reform Act) (Chapter 9:23), alternatively defeating or obstructing the course of justice as defined in Section 184(1) (b) of the Criminal Law (Codification and Reform Act) (Chapter 9:23) be and are hereby dismissed," said Justice Tsanga.

"Applicant shall be entitled to his unconditional liberty and to the release to him of his bail recognisance that is held by the State." Mr Tomana was facing a litany of criminal abuse of office charges and was indicted for trial on November 17, 2016.

Since his indictment, Mr Tomana has been waiting for trial for over 14 months, without a trial date. At one time, his trial was set to start on February 13 last year, but no progress was made.

Adv Mpofu approached the High Court for a compelling order quashing the charges against his client on the basis of lapse of indictment.

He argued that Section 160(2) of the Criminal Procedure and Evidence Act (Chapter 9:07) provides that if no trial takes place for a period of more than six months from the committal date, the charges must be dismissed on the basis of the lapse of the indictment.

In his application, Mr Tomana attacked Prosecutor-General Ray Goba's conduct, which ensured that the matter would not proceed.

To strengthen his case, Mr Tomana referred the judge to a judgment by Justice Tawanda Chitapi last year that castigated Adv Goba for lack of professionalism in the manner he was handling the matter.

In that judgment, Justice Chitapi spelt out the legal implications of the decision he had taken as far as the hearing of the matter was concerned. Justice Tsanga heard that there had been a period in excess of 14 months without trial for the former Prosecutor-General.

The judge did not agree with submissions made by Ms Sharon Fero, who appeared for the State. Ms Fero argued that Mr Tomana and his lawyer were not prepared for trial as they intended to make a constitutional application, which they did.

She also said from the date of Justice Chitapi's judgment, six months had not yet lapsed and the matter could not, therefore, be dismissed.

Mr Tomana was fired in June last year for misconduct and incompetence after a tribunal set by former President Mugabe to probe him recommended his dismissal. The tribunal was led by Retired High Court judge Justice Moses Chinhengo.

Mr Tomana's dismissal was subsequently announced in General Notice 292 of 2017 that was published in the Government Gazette on June 9, 2017. Charges against Mr Tomana arose sometime in 2004, when Bright Matonga, then chief executive of Zimbabwe United Passenger Company (Zupco), was charged with culpable homicide.

It is alleged that the charge arose from a road traffic accident that claimed the life of magistrate Ms Chipo Chikowore. He allegedly called for the docket and instructed that the charges be dismissed.

In 2006, Matonga was charged with contravening sections of the Prevention of Corruption Act and in December 2008, Mr Tomana allegedly instructed Morgan Dube to drop the charges after plea. The court heard that in 2006, Zupco board chairman Charles Nherera was charged with corruption.

Mr Tomana testified as a defence witness and Nherera was sentenced to three years in prison. After sentence, Nherera unsuccessfully applied for bail pending appeal at the High Court. Nherera served his sentence and was released from prison in December 2008.

When Mr Tomana was appointed Attorney-General, he declared that Nherera was innocent and wrongfully convicted. The court heard that former Bindura Hospital acting medical superintendent Beauty Basile was charged with criminal abuse of duty.

She appeared before the Harare regional magistrates' courts, but Tomana allegedly ordered the withdrawal of charges after plea on November 24, 2009.

The court heard that in October 2009, Patrick Mavros, a gold dealer, was charged with possession of gold without a licence. Mavros admitted to the charges, but Mr Tomana directed that prosecution be declined, it is alleged. - the herald